Judicial Gag Rule - New York Times
The New York Times

January 16, 2006
Op-Ed Columnist

Judicial Gag Rule
By
BOB HERBERT

A casual newspaper reader or television viewer might have gotten the
impression that the major problem with last week's Supreme Court
confirmation hearings
was that some senators on the Judiciary Committee talked too much. The
truth, of course, is that the nominee, Samuel Alito, talked far too little.

Senator Joseph Biden, a Delaware Democrat with designs on the presidency,
was singled out for criticism. Senator Biden is unquestionably loquacious.
We
might as well stipulate that. But he's also a smart guy. And an occasion as
important - even solemn - as a Senate inquiry into the fitness of a man to
sit on the Supreme Court is as good a time as any for us to worry a little
less about style points and a lot more about the substantive matters at
hand.

When the president of the United States, who is abusing his power every
which way he can, chooses for the Supreme Court an extreme right-winger who
is all
but mesmerized by the power elite, it would behoove us to pay closer
attention to the substance of what Senator Biden and others are saying.

"The whole point here," said Mr. Biden, in an interview on the "Today" show,
"is that nominees now, Democrat and Republican nominees, come before the
United
States Congress and resolve not to let the people know what they think about
important issues."

The "real issue," he said, is whether the public has a right to know how
Supreme Court nominees view certain crucially important matters, including
matters
involving threats to life and limb, or that ultimately might determine
whether we will continue to live in a reasonably free society.

For example, Senator Biden asked: "Do the people have a right to know
whether or not President Bush is able to go to war in Iran without
Congressional approval,
which his administration argues? That's a pretty basic subject. Do they have
that right?

"Well, it seems to me a judge before us should say, 'Well, I think the
Constitution says he does or he doesn't,' as opposed to saying, 'Well, he's
bound
by the Constitution,' which begs the question."

The confirmation hearings have become farcical, an obnoxious hide-and-seek
ritual in which the administration's ultimate goal is to have the public
know
as little as possible - as opposed to as much as possible - about
individuals being appointed to the most powerful court in the land. That's
the opposite
of the way a democracy should work.

Mr. Alito is on his way toward confirmation. He will probably vote to
reverse Roe v. Wade. He will not be a champion of voting rights for
minorities, or
a bulwark against racial and gender discrimination. If his record is any
indication, and we have very little else to go on, he will almost always
side
with the powerful interests, whether in government or the great
corporations, against the little guy.

I can understand why the Republican Party - the party of Bush, Cheney,
Frist, Abramoff and DeLay - would want such a man. But why the general
public would
want him is beyond me.

Sam Alito is the kind of guy who, rather than lend a helping hand, would
slam the trap door on less-privileged individuals seeking opportunities
similar
to those he enjoyed. Nor is he trustworthy. I don't believe his story that
he couldn't remember belonging to the bigoted group Concerned Alumni of
Princeton,
given the fact that he was happy enough in 1985 to tout his membership in
the group on his application for a promotion in the Reagan Justice
Department.

After Mr. Alito is confirmed, President Bush and Dick Cheney will pat their
new justice on the back and help him into his judicial robes, wishing him
well.
He'll then get high-fives and warm embraces from his ideological soul mates,
Clarence Thomas and Antonin Scalia. The Supreme Court will have tilted even
more dangerously to the right and, in my view, the rights and protections of
ordinary citizens - the little guys - will be in even graver peril.

The great post-World War II advances in civil rights and civil liberties,
and the protection of ordinary citizens against the depredations of the rich
and
powerful, would never have happened without the courageous efforts of the
enlightened justices who served on the Supreme Court in that era. They would
surely never have happened with the likes of Alito, Thomas and Scalia making
the important calls.

It will take many years to reverse this dismal tide. You might keep that in
mind the next time you're considering whether to vote - or for whom to vote
- in a presidential election.

Posted by Miriam V